T24 Custodial sentence Flashcards
what does custodial sentence mean? ( Age 21+, 18-21, Under 18)
A: A sentence of imprisonment
->21 and over: Sentence of imprisonment
18 to 21: Detention in a young offenders’ institution or custody for life
Under 18: Detention and training order or detention under section 250 of the Sentencing Act 2020
**RMBR: A sentence of custody for life ( available to offenders aged between 18 and 21) **
What are the main types of custodial Sentence
->Mandatory sentences (sentence fixed by law);
->Prescribed (or minimum) sentences;
->Discretionary sentences;
->Dangerous offenders provisions (see separate Factsheet);
->Suspended sentences of imprisonment;
What is the only mandatory custodial sentence in the UK
Life imprisonment for murder
How does the mandatory sentence for murder vary by age
->21 and over: Life imprisonment
->Under 21 at conviction: Custody for life
->Under 18 at time of offence: Detention at His Majesty’s Pleasure
What is the purpose of Section 321 of the Sentencing Act 2020?
It sets out rules for minimum terms (tariffs) that an offender must serve before being eligible for release
What must the court consider when setting a tariff?
The seriousness of the offence(s) and any time spent in custody or on a qualifying curfew.
Is dangerousness considered when setting a tariff under Section 321?
No, dangerousness is dealt with under the whole life order.
When can a whole life order be imposed?
Whole life orders can be imposed for the most serious cases if the offender is over 21.
They can also be imposed on 18–20-year-olds, but only if the offence is exceptionally serious, even by the standards of whole life cases.
How are days spent in custody on remand treated when sentencing?
They are not automatically credited, so the court must adjust the sentence tariff to account for them.
Prescribed custodial sentences
- They are not auto credited, so the court must adjust the sentence tarriff to account for them
What are the provisions for prescribed custodial sentences for Class A drug offences?
For a third conviction of Class A drug trafficking , a minimum seven-year term must be imposed, unless court believe that there is exceptional circumstances exist.
The test is less stringent for third offences committed before 28th June 2022, where specific circumstances may make it unjust to impose the minimum sentence.
What are the provisions for prescribed custodial sentences for domestic burglary?
For a third conviction of domestic burglary (committed on or after 01.12.99), a minimum three-year sentence must be imposed, unless the court believes that there are exceptional circumstances.
The convictions must be on separate dates, this means that if a D is sentenced for two dwelling house burglaries during the same hearing** it counts as one conviction for the purposes of the Act. **
THIS IS THE SAME FOR CLASS A DRUG PROVISIONS
What is the rule for sentencing under the Class A drug or domestic burglary provisions?
The court cannot impose a sentence less than 80% of the minimum specified sentence, even if a guilty plea is considered.
Any credit for a guilty plea must be adjusted to ensure the sentence remains at least 80% of the minimum term.
What are the principles for imposing discretionary custodial sentences?
A: When considering a discretionary custodial sentence, the court must ensure:
- “The custody threshold is crossed”, meaning the offence is serious enough that no other sentence is appropriate.
- “The sentence should be the shortest term possible”, in line with the seriousness of the offence.
What factors does the court consider when sentencing for multiple offences?
The court may consider the combination of the offenceswhen determining the custodial sentence length, but must also follow the “totality principle.”
IMPORTANT
Passing the custody threshold does not automatically result in a custodial sentence,
as mitigation may lead to a non-custodial sentence*
Can a court pass a custodial sentence if an offender refuses to comply with a Community Order requirement?
Yes, exceptionally, the court may pass a custodial sentence if the offender refuses to comply with a requirement in a community order
, such as a Drug Rehabilitation Requirement (DRR) or mental health treatment, even if the custody threshold is not met.
What are some of the MC court powers
Magistrates’ courts can impose sentences of up to 12 months ‘ imprisonment for summary-only offences,
with an exception for low-value criminal damage offences (under £5000), where the maximum sentence is 3 months.
What are some of the MC court power (pt 2)
The aggregate ( or total) sentence limit for summary-only offences in magistrates’ courts is 12 months, regardless of how many offences there are
What change has been made regarding EWA
The poisition for EWA now more complex as Secretary of states not has power to change the “applicable limit in a mc” from 6 months to 12 months or vice versa
What are the maximum sentence limits in the CC
In the Crown Court, the maximum sentence is the one prescribed for the specific offence. If no maximum is stated for a statutory offence, it is considered to be a t
@two-year maximum@ (under s223 of the Sentencing Act 2020). For common law offences, there is no maximum sentence
What are the Crown Court’s sentencing powers for common law offences and statutory offences?
The Crown Court has full sentencing powers for common law offences, as there is no maximum sentence for them.
For statutory offences, the court has the sentencing options prescribed for that offence.
However, the Crown Court’s powers are limited by mandatory and prescribed sentences.
To which sentences does the power to impose a suspended sentence apply?
The power to impose a suspended sentence applies to sentences of 1) imprisonment and
2)detention in a young offender’s institution,
BUT not to detention and training orders.
What is a suspended sentence of imprisonment and what are the conditions for it?
A suspended sentence of imprisonment means the imprisonment does not take effect immediately.
The custody threshold must be crossed, and the defendant must be over 18 before a suspended sentence can be imposed
What are the conditions for imposing a suspended sentence of imprisonment?
The court must first determine the appropriate custodial period based on the seriousness of the offence.
A suspended sentence is only available for “imprisonment between 14 days and 2 years”, or “detention in a young offender institution between 21 days and 2 years”
What are the limits on the length of a suspended sentence?
A sentence cannot be suspended if the total imprisonment term exceeds 2 years.
For magistrates, the length of a suspended sentence depends on the maximum term they could impose if the imprisonment were immediate
What is the Crown Court’s power regarding suspended sentences?
The Crown Court can suspend any sentence of imprisonment up to 2 years.
The period during which the sentence is suspended is called the “operational period.”
If no offence is committed during this period, the sentence will not take effect.
What is the maximum length of the operational period for a suspended sentence?
The operational period cannot exceed 2 years, and if no offence is committed during this time, the suspended sentence will not take effect.
This applies in both the magistrates’ court and the Crown Court.
Can a suspended sentence include community requirements?
Yes, a suspended sentence usually includes one or more community requirements, which are the same as those under a community order.
However, the court is not required to impose them, so a suspended sentence can be given without any additional requirements.
When can a suspended sentence be imposed alongside other sentences?
A suspended sentence should not be imposed with a prison sentence or community order on the same occasion, and not on someone already serving a prison sentence.
BUT
It can be imposed with a fine or with a discharge, but not for the same offence as the discharge. (NO SUSPENDED SENTENCE FOR THE OFFENCE THAT WAS DISCHARGE)
Breach of suspended sentence of imprisoment
What happens if a suspended sentence is breached under Schedule 16 of the Sentencing Act 2020?
If a suspended sentence is breached, the court MUST ACT under Schedule 16—it has no discretion to ignore the breach.
A breach can occur if the defendant either
(1) fails to comply with a court-ordered requirement during the supervision period, or
(2) commits another offence during the operational period.
What options does the court have when dealing with a breach of a suspended sentence
The court can:
1) Increase the number of requirements (if any),
2)Extend the operational period (up to the 2-year maximum),
3) Extend the supervision period (within the maximum limit),
4) Fine the defendant up to £2,500,
5) Activate the custodial sentence, either in full or in part. (THERE IS PRESUMPTION THAT IMPRISONMENT ACTIVATED WHERE BREACH UNLESS IT WOULD BE UNJUST TO DO SO)
When sentencing for multiple offences, the court must impose a separate sentence for each offence, unless marked as ‘no separate penalty’.
Prison or detention sentences may run concurrently (at the same time) or consecutively (one after the other)
Ex: imprisonment or detention in young offender may run cosec or concurrently
Consecutive sentences run one after the other, increasing total time in custody. ( same offence diff time count all altogether)
Concurrent sentences run at the same time, with the longest sentence setting the total duration. ( Count the long one where two separate offence)
When are concurrent sentences are usually appropriate?
1)Offences arise from the same incident or facts, or
2) There’s a series of similar or related offences.
When are consecutive sentences appropriate?
1) Offences stem from unrelated incidents,
2) Distinct offences in the same incident need separate recognition,
3) Similar offences require consecutive terms to reflect overall criminality,
4) A statutory minimum sentence must be upheld.
Remember the totality principle applies for both sentences
= that the overall sentence should reflect all of the offending behaviour and be just and proportionate
When sentences are consecutive, it’s typically not fair to simply add up the individual sentences; a downward adjustment is usually necessary.
DOWNWARD ADJUSTMENT NEEDED FOR CONSECUTIVE SENTENCE
What is the typical approach when sentences are concurrent?
When sentences are concurrent, an upward adjustment is usually required, as the notional single sentence for one offence may not reflect all the offending behaviour.
This could involve passing a sentence outside the appropriate category range for the lead offence. ( UPWARD ADJUSTMENT)
When does a sentence normally take effect, and what are the exceptions?
Normally, a sentence takes effect from the day it is imposed. However, the court may order it to run consecutively to an existing sentence.
BUT
A sentence cannot run consecutively to one for which the offender has been released on licence, whether recalled or not.
Release Provisions
When is an offender typically released from a determinate custodial sentence, and what is the role of the licence?
When court give custodial sentence, the offender will not necessarily serve the entirety of the term ( depends on the type and length of the sentence)
For determinate sentences of imprisonment, offenders are usually released on licence after serving half of their sentence.
The licence remains in force until the end of the sentence. The court should not consider early release or release provisions when determining the sentence.
When can the Secretary of State refer an offender to the parole board instead of automatic release?
The Secretary of State may refer an offender (over 18) to the parole board if he believes that, on reasonable grounds, the offender would pose a significant risk to the public of serious harm by committing murder or other specified offences upon release.
How is time on remand treated in sentencing?
Periods of remand in custody for an offence or related offence are usually automatically deducted from the length of time to be served, with exceptions like life sentences. ( this is where you sit in custody before be sentence)
If an offender was remanded on bail with an electronically monitored curfew (not less than 9 hours a day), the court may direct that this ‘credit period’ counts as time served, though it requires a direction.
A 5-step method is used to calculate the ‘credit period.’
